- 20 - tax return. Petitioners have presented no evidence that Ms. Smith unlawfully appropriated petitioner’s property intending to deprive him of it. On the contrary, the record demonstrates that petitioner agreed pursuant to the 1988 settlement agreement to indemnify Ms. Smith with respect to any and all taxes for tax years prior to 1987. As discussed above, in Smith v. Ferguson, 160 S.W.3d at 123, the court held that petitioner’s indemnifying Ms. Smith against Federal income tax liabilities effectively estopped petitioner from later claiming that Ms. Smith breached the divorce agreement by failing to file a proper 1986 Federal income tax return. We conclude that petitioners have failed to show that the alleged failure of Ms. Smith to file a proper 1986 Federal income tax return constitutes a theft. Consequently, we hold that petitioners are not entitled to a section 165 theft loss deduction for the failure of Ms. Smith to file a proper 1986 Federal income tax return. Furthermore, petitioners have failed to demonstrate that they are entitled to a section 166 bad debt deduction related to the alleged failure of Ms. Smith to file a proper 1986 Federal income tax return. We understand petitioners’ contention to be that petitioner’s payment of Ms. Smith’s 1986 tax liability in discharge of petitioner’s obligation as a guarantor may be treated as a worthless debt and that petitioners may deduct the payment pursuant to either section 166(a) or (d). The recordPage: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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